[Answered] “The Surrogacy (Regulation) Bill, 2019 try to balance altruistic and commercial interests.” Examine.

The Surrogacy (Regulation) Bill, 2019 seeks to ban commercial surrogacy and intend to make it an entirely altruistic alternative, making surrogacy completely altruistic practice in India, with no emphasis on commercial interests. The Bill intend to prohibit the potential exploitation of surrogate mothers and to protect the rights of children born through surrogacy.

How surrogacy bill seeks to achieve altruistic interest?

• Only altruistic surrogacy permitted: Surrogacy is permitted when it is:
  • for intending couples who suffer from proven infertility;
  • altruistic purposes;
  • not for commercial purposes;
  • not for producing children for sale, prostitution or other forms of exploitation;
  • for any condition or disease specified through regulations.
• Certificate for eligibility: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. Surrogate mother need to obtain a certificate of eligibility from the appropriate authority. Further, the surrogate mother cannot provide her own gametes for surrogacy. This would ensure genuine surrogacy practices.
• Appropriate vigil authorities: The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority include:
  • granting, suspending or cancelling registration of surrogacy clinics;
  • enforcing standards for surrogacy clinics;
  • investigating and taking action against breach of the provisions of the Bill;
  • recommending modifications to the rules and regulations.

Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority. This will check commercial surrogacy.

• Surrogacy Boards: The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. Functions of the NSB include
  • advising the central government on policy matters relating to surrogacy.
  • laying down the code of conduct of surrogacy clinics and
  • supervising the functioning of SSBs.
• By removing situation of conflict: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.
• Health of surrogate and mother: The bill seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years and 26-55 years for female and male, respectively. A woman should be allowed to act as a surrogate mother only once and should be a close relative of the intending couple and should be an ever-married woman having a child of her own and between the age of 25-35 years. It will prevent exploitation of girls who were forced to enter into surrogacy business for money once they attain reproductive age.
• Defined offences and penalty: The offences under the Bill include:
  • undertaking or advertising commercial surrogacy;
  • exploiting the surrogate mother;
  • abandoning, exploiting or disowning a surrogate child; and
  • selling or importing human embryo or gametes for surrogacy. 

The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

Some Concerns:

1. Only Indian couples who have been legally married for at least five years would be allowed to opt for surrogacy, as per the bill. It is not mentioned that why should a couple have to wait for five years after marriage, and what is the definition of a legally married couple.
2. Past experience of anti abortion laws suggest that complete banning on commercial activities may not be successful.
3. Infertility clinics will find legal loopholes or move surrogate mothers across borders. These activities expose surrogate mothers to great risks.
4. There is also the issue of in-vitro fertilisation and recruitment of surrogate mothers from other countries who would be implanted with the embryo in India by an infertility specialist, and then would be flown back to their own country.
5. It will be difficult for enforcement agencies to distinguish surrogate mothers in hospitals from other pregnant women.

In recent years, India has emerged as a surrogacy hub for couples from other countries.

There were multiple reports concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets. Surrogacy Bill 2019 intend to stop these practices with an aim to make surrogacy completely an altruistic practice than a commercial business which it may fail to completely end. But it will surely put a check on commercial exploitation promoting altruistic cause.